Nuclear Law Committee Report

I. Judicial Developments

A. U.S. NRC v. Texas

In 2023, the State of Texas and the Texas Commission of Environmental Quality (Texas), along with two oil and mineral firms (Fasken) (both collectively, Petitioners) filed a petition for review of a U.S. Nuclear Regulatory Commission’s (NRC, or Commission) decision to issue a special nuclear materials (SNM) license to store spent nuclear fuel to Interim Storage Partners LLC (ISP) with the United States Court of Appeals for the Fifth Circuit. Specifically, Texas argued, among other things, that the NRC lacked the authority to issue a license under the Atomic Energy Act (AEA) for a temporary away-from reactor spent fuel storage facility.

The Court analyzed the Petitioners’ standing under the Administrative Orders Review Act, or the Hobbs Act. The Court observed that the Hobbs Act gives a “party aggrieved” by the final order the standing to file a petition to review the order in the court of appeals wherein the venue lies. Accordingly, the Court opined that “[t]he plain test of the Hobbs Act merely requires that a petitioner seeking review of an agency action be a “party aggrieved.” Diverging from precedent in other Circuits holding that standing to seek judicial review under the Hobbs Act is limited to those who sought and were granted leave to intervene in relevant NRC administrative proceedings, the Court explained that because Texas and Fasken participated in “some way” in the NRC’s administrative proceedings (Texas, submitting comments, and Fasken, submitting a hearing petition), the Petitioners had met the Hobbs Act requirements under the Circuit’s ultra vires exception. This exception applies in either of “two rare instances” where standing is given “even if not a party to the original agency proceeding’ –(1) where ‘the agency action is attacked as exceeding [its] power’ and (2) where the person ‘challenges the constitutionality of the statute conferring authority on the agency.’” Accordingly, the Court found that both Texas and Fasken had standing under the Hobbs Act because they were challenging the NRC’s authority under the AEA and the Nuclear Waste Policy Act (NWPA) for issuing the SNM license to ISP.

The Court then held that the Commission had no statutory authority to issue the license, and that issuance of the license contradicted Congressional policy under the NWPA. The Court took a textual approach in its analysis, opining that the AEA “authorizes the Commission to issue licenses only for certain enumerated purposes—none of which encompass storage or disposal of material as radioactive as spent nuclear fuel.” Notwithstanding the Commission’s argument that it could issue the license to ISP because the AEA conferred upon the NRC the enumerated authority to issue licenses for the possession of SNM, source material, and biproduct material, and these materials are constituent material of SNM, the Court was not persuaded. Moreover, the Court wrote that the issued license could not be reconciled with the NWPA, because the NWPA was created by Congress as the comprehensive statutory scheme for addressing spent nuclear fuel accumulation in the country. Accordingly, the Court granted the Petitioners’ petition for review, and vacated ISP’s license.

The NRC and ISP petitioned the Fifth Circuit for en banc review of the Panel’s decision, but the Circuit Court denied the petition on March 14, 2024. On June 12, 2024, NRC and ISP filed a petition for certiorari before the U.S. Supreme Court, and on October 4, 2024, the Supreme Court granted the petition for review. The petition presents two questions for the Supreme Court’s consideration: whether the Hobbs Act permits nonparties to obtain a review of claims asserting that an agency has exceeded its statutory authority, and whether the AEA and the NWPA allows the NRC to license private entities to temporarily store spent fuel away from the reactor that generated the spent fuel. The Supreme Court heard oral arguments on March 5, 2025, and will decide the case before the end of the Court’s term.

B. Loper Bright Enterprises v. Raimondo

On June 28, 2024, the U.S. Supreme Court issued Loper Bright Enterprises v. Raimondo, overruling Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. The 1984 Chevron decision held that, if a statute administered by an agency is ambiguous, then a reviewing court would defer to a federal agency’s reasonable interpretation of that statute. The Court disagreed, finding that courts must independently determine whether an agency has acted within its statutory authority, as required by the Administrative Procedure Act (APA). The Supreme Court directed lower courts to “use every tool at their disposal to determine the best reading of the statute” to resolve statutory ambiguities, just as they do in cases where a federal agency is not involved.

The Court clarified that its decision does not undermine earlier cases decided under the Chevron framework, and that “due respect” should still be given to the views of federal agencies (particularly their consistent and contemporaneous interpretations). Additionally, when a specific statute delegates authority to an agency within constitutional limits, courts must respect that delegation while ensuring the agency operates within its bounds.

Notably, Loper Bright decision does not eliminate all judicial deference to federal agencies. For example, courts will still afford agencies “Skidmore deference,” where courts will evaluate the agency’s interpretation and decide how much weight to give it based on the agency’s expertise and cogency of its arguments. Also, when the issue before the court concerns the agency’s policymaking, factfinding intertwined with statutory terms, and application of technical judgment, Loper Bright does not reduce the deference afforded to the agency by the court. It is likely that, notwithstanding Loper Bright, the U.S. NRC should continue to receive a high level of deference for its technical judgment under Skidmore, so long as the matter does not concern statutory interpretation where the NRC has not received Congressional authority to exercise discretion.

C. Mazzocchio v. Cotter Corporation

On October 30, 2024, the Court of Appeals for the Eighth Circuit decided in Mazzocchio v. Cotter Corporation that the federal regulations that govern dose limits (i.e., the NRC’s 10 CFR 20) do not preempt state law standards of care in tort cases brought under the Price-Anderson Act alleging radioactive exposure. Instead, the Eighth Circuit panel of judges affirmed the lower District Court’s ruling that state law could provide the relevant standard of care in a Price-Anderson Act claim by a member of the public.

This holding departs from the holdings of every other Federal Circuit Court that has considered this issue. In similar cases, these courts held that because the field of nuclear safety is occupied by federal regulation, the incorporation of a “state duty” into a public liability action would infringe upon pervasive federal safety regulations in the field of nuclear safety. These courts also noted that a jury should not be applying state-law standards to a negligence claim or permissible levels of radiological exposure when the federal government (i.e., the NRC) has already brought its expertise in deciding the federal standard through rulemaking. These points notwithstanding, the Eighth Circuit held that the NRC’s regulations need not provide the exclusive standard of care in public liability actions.

Cotter Corporation petitioned for an en banc review on November 27, 2024. The petition was denied on December 18, 2024.

II. Key Legislation

A. Advance Act

On July 9, 2024, President Biden signed the Accelerating Deployment of Versatile, Advanced Nuclear for Clean Energy (ADVANCE) Act of 2024 into law. The legislation enjoyed broad bipartisan support, with the House voting for the Act 393-13 and the Senate voting 88-2. The ADVANCE Act has been hailed as a major piece of legislation that will help the NRC update its regulatory framework to support next generation advanced reactors, including microreactors, among other things.

Through the ADVANCE Act, Congress directed the NRC to update its mission so that its regulatory activities do not unnecessarily limit the benefits of nuclear energy technology to society. Responding to this direction, the NRC’s Office of General Counsel furnished the Commission with an options paper and recommendation on revising NRC’s mission statement (SECY-24-0083) to comport with Congress’s expectations. On January 24, 2025, the Commission approved a revised mission statement for the Agency. The new mission statement now reads that “[t[he NRC protects public health and safety and advances the nation’s common defense and security by enabling the safe and secure use and development of a civilian nuclear energy technologies and radioactive materials through efficient and reliable licensing, oversight, and regulation for the benefit of society and the environment.”

To further ready the agency for review of advanced reactor licensing applications, the Act authorized the Commission Chair to strengthen the NRC workforce by enabling the Chair to appoint well-qualified individuals into the excepted service without competition, and hiring and performance bonuses are also available to NRC staff that demonstrate exceptional performance. The Act further directs the NRC to find efficiencies and enact them in its environmental reviews under NEPA for reactor license applications—specifically, through the use of categorical exclusions, environmental assessments, and generic environmental impact statements.

The ADVANCE Act also directs NRC to adjust fees to facilitate advanced nuclear reactor applications. For example, any mission-indirect activities taken by the NRC staff that would usually be passed on to the licensee are now no longer part of the NRC’s fee base. NRC fees that were traditionally charged to reactor license applicants for application activities and early site permit reviews on DOE sites are also removed.

Importantly, Congress directed the NRC to develop risk-informed and performance-based strategies and guidance for licensing and regulating microreactors by January 2026. Such areas for strategies and guidance include staffing and operations, oversight and inspections, safeguards and security, emergency preparedness, risk analysis methods, decommissioning, transportation of fueled microreactors, and siting. Related to microreactors and advanced reactors, the law directs the Commission to enhance preparedness and coordination to qualify and license advanced nuclear fuel.

The ADVANCE Act also amends the Atomic Energy Act (AEA) to permit certain foreign ownership for power reactors and reactor manufacturing facilities in the United States. Specifically, the AEA is amended to allow entities that are “owned, controlled, or dominated” by the government of a country that is a member of the Organisation for Economic Co-operation and Development (OECD) or the Republic of India, a corporation incorporated in one of those countries, or a citizen or national of those countries. Notwithstanding this amendment to the AEA, the NRC will still determine whether issuance of the license is not inimical to the common defense and security of the United States or the health and safety of the public.

III. Administrative Developments

A. Commission Makeup

On June 4, 2024, the Senate approved Commissioner Hanson’s nomination by a 81-17 vote. Commissioner Hanson’s term is now set to expire on June 30, 2029. President Biden also nominated Matthew Marzano for a five-year term as Commissioner, and in late November 2024 the Senate Environment and Public Works Committee’s voted on party lines to advance Mr. Marzano’s nomination for a vote to the U.S. Senate floor. On December 12, 2024, the Senate confirmed Mr. Marzano to the NRC with a 50-45 vote. Commissioner Marzano’s term will expire on June 30, 2028.

On January 21, 2025, President Donald Trump appointed Commissioner David Wright as Chairman of the Commission. Chairman Wright’s term is due to expire on June 30, 2025, if not renominated and approved by the Senate for another term. Commissioner Annie Caputo is currently serving a term that will end on June 30, 2026, and Commissioner Bradley Crowell’s term is due to expire on June 30, 2027.

B. New Licenses, License Renewals, and Applications

There are ninety-four operating commercial nuclear power reactors in the United States. Ten reactors have been operating for over fifty years; forty-two have been operating for between forty and forty-nine years; thirty-seven have been operating for between thirty and thirty-nine years; two have been operating between twenty and twenty-nine years, and one has been operating between one and nineteen years, and one for less than a year. Notably, in April 2024, Vogtle Unit No. 4 began commercial power operations, making it the second U.S. nuclear power reactor fully licensed and operating under the 10 C.F.R. Part 52 licensing framework.

In 2024, the NRC renewed Monticello Nuclear Generating Plant (Minnesota) and North Anna (Virginia) operating licenses for a second twenty-year license term. The NRC also restored the Turkey Point Units 3 and 4 license expiration dates after it reviewed and completed a supplemental environmental review for the site, pursuant to a Commission order (CLI-22-2).

The NRC conducted an initial license renewal review and renewed Comanche Peak Nuclear Power Plant’s (Texas) operating license for an additional 20 years. The NRC staff are currently reviewing initial renewal applications for Perry Unit 1 (Ohio); and Diablo Canyon Units 1 and 2 (California). The NRC staff is reviewing subsequent license renewals (SLR) (i.e., additional 20 years of operation after 60 years): Point Beach (Wisconsin), Oconee and V.C. Summer (South Carolina), St. Lucie (Florida), Browns Ferry (Alabama), and Dresden (Illinois). Two additional SLR applications are expected to be submitted in 2025 (H.B. Robinson Steam Electric Plant, Unit No. 2; Edwin I. Hatch Nuclear Plant, Units 1 and 2).

Regarding non-power/research reactors, there are thirty-one licensed and operating research and test reactors in the United States. On September 16, 2024, the NRC issued a construction permit to Abilene Christian University for construction of its advanced molten salt research reactor. Further, on November 20, 2024, through its issuance of CLI-24-3, Commission authorized the Director of the Office of Nuclear Reactor Regulation to issue construction permits for the Kairos Hermes 2 Test Reactor Facility.

C. Agreement State Applications and Amendments

On September 19, 2023, the Commission approved the staff’s recommendation to SECY-23-0075, authorize the amendment to Wyoming’s agreement with the NRC under AEA Section 274.b. The amendment gave Wyoming regulatory authority over source material that is recovered during mineral processing activities that are for the purpose other than obtaining source material content.

In 2024, Connecticut, Indiana, and West Virginia remain in process of becoming agreement states with the NRC. On March 10, 2025, the NRC released a draft of the proposed agreement between Connecticut and the NRC, and issued a Federal Register notice for public comment, an indication that Connecticut is nearing the end of the Commission’s process in becoming an agreement state.

D. Commission Adjudicatory Decisions

The number of Commission decisions continued its trend down again in 2024, with only three orders issued in 2024, compared to five in 2023. The Commission’s two adjudicatory decisions for 2024 are summarized below:

On March 7, 2024, the Commission issued CLI-24-1, which concerned the subsequent license renewal (SLR) for Turkey Point Nuclear Generating Station Units 3 and 4. The Atomic Safety and Licensing Board (Board) certified a question to the Commission regarding the timing of the NRC staff’s issuance of the notice of opportunity for hearing in the SLR, under the Commission’s instructions in CLI-22-3.

The Commission issued CLI-22-3 to provide guidance on five open SLR proceedings, given that staff’s concomitant effort to update the 2013 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS). Specifically, the question was: “Should the NRC Staff have waited to issue the notice of opportunity for hearing until it completed the Final SEIS [supplemental environmental impact statement], and if so, how does that impact the conduct of the proceeding?”

The Commission granted review of the certified question and found that the NRC staff’s interpretation of CLI-22-3 in issuing the announcement for the public’s opportunity for hearing at the draft EIS phase was reasonable. The Commission opined that the staff appropriately adopted its ordinary procedure in announcing a hearing opportunity at the earliest opportunity to promote efficiency, rather than waiting until after consideration of all public comments and the publication of the staff’s final EIS. The Commission further noted that, any information developed during a hearing would supplement the environmental record for the SLR, so the public has many other ways to supplement the record, notwithstanding the staff’s timing for issuance of the hearing opportunity at the draft EIS stage.

On April 9, 2024, the Commission issued CLI-24-2, which concerned a subpoena duces tecum issued by the NRC’s Office of Investigations (OI) to an NRC licensee. OI was investigating potential wrongdoing at Missouri’s State Emergency Management Agency (SEMA) and sought to obtain personnel records to investigate certain alleged violations of NRC requirements at SEMA’s Radiological Emergency Preparedness Program. SEMA declined to voluntarily give records to OI on the basis that, under Missouri law, the records were “closed records.” OI then issued a subpoena to SEMA to obtain the records. Accordingly, SEMA filed a motion to quash or modify the subpoena.

The Commission held that, contrary to SEMA’s description and under the plain text of the subpoena, OI was not seeking information from SEMA that was “unlimited in subject matter” and “scope”, “overly broad”, “vague”, or “irrelevant.” Moreover, the Commission concluded that Missouri’s law on “closed records” did not apply to this case: “Even were [SEMA] to close all responsive records in this matter under [state law], that fact alone would not allow [SEMA] to refuse to comply with the subpoena; rather, it would permit the State to shield the records from the public.” Because NRC OI withholds investigatory material under its internal procedures, the information gathered by OI would not be released to the public. The Commission further pointed to the text of the Missouri state law, that states that “closed records” may still be disclosed when it is otherwise required by law. The Commission opined that because the NRC was tasked with carrying out the provisions of the Atomic Energy Act and the subpoena was issued pursuant to the AEA, the state is required even by its own law to produce the requested records. Accordingly, the Commission denied the State’s motion to quash or modify, and the Commission ordered the subpoena remain in force with a return date of no later than 30 days from issuance of the Commission’s order.